from the reverse-regulatory-capture dept

Supposedly completely of its own volition, Maryland's court system has decided to extend extra rights to law enforcement officers. Going to bat for opacity, the Maryland Judiciary has made it harder for the public to find out what officers are doing (or how often they're being sued). This comes against a backdrop where more sunlight would seem essential, what with several Baltimore police officers facing corruption charges in a wide-ranging investigation that has already netted a handful of convictions and guilty pleas.

Maryland’s Judiciary on Friday defended a decision to remove the names of police officers and other law enforcement authorities from the state’s searchable public online court database, saying the change was made in response to “safety concerns raised by law enforcement.”

The change took effect Thursday, following a decision by a judicial rules committee last June. Officers’ names no longer appear on cases they were involved with, and searches using an officer’s name cannot be performed.

The Judiciary claims this "balances" public access to court information with its "obligation" to protect officers from "potential misuse." It did not cite any actual misuse in defense of its position. Nor did it cite any support from law enforcement agencies or "safety concerns" raised by them. While the Anne Arundel County police admitted to lobbying for a change, all the department had asked for was the removal of first names, not removal of officers' names entirely.

Multiple law enforcement agencies contacted by The Baltimore Sun expressed their concern with the Judiciary's decision.

[T]he Maryland State Police said they had not lobbied for such a change, and the [Baltimore] Police Department said they did not agree with it.

A spokesman for Gov. Larry Hogan said: “Public information should be public. End of story.”

[...]

Baltimore police said they didn’t lobby for a change and “really don’t see why they got rid of what was already publicly available.”

“We use it too,” chief spokesman T.J. Smith said of the data.

Even more bizarrely, the Judiciary claims this removal only affects "remote access." Supposedly the names of officers can still be accessed by using local court kiosks. This makes no sense. Why would cops be "safer" if their names can only be accessed inside a local court? Wouldn't that make these (apparently imaginary) threats to officer safety much more proximate to the officers affected?

Beyond that, there's the fact that kiosk access is limited. Or, in the case of the Baltimore Circuit Court, kiosks are nonexistent. According to the Sun, the Baltimore court runs searches through an "archaic" computer system (not a kiosk) that does not provide the same search options as its online counterpart.

Local public defenders were unaware officer information was being removed, which seems to be a key oversight in the process. Public defenders are very much a part of the judicial process, yet they were never informed information they need on a daily basis would no longer be available. Already overworked, public defenders will now be forced to visit courts to access officer information and hope that court has kiosks that actually provide the search functions they need.

The Judiciary claims all of this was done in the open and with the consultation of stakeholders. This can't possibly be true since both law enforcement agencies and defense lawyers were apparently unaware of the change until The Baltimore Sun contacted them. The Judiciary's own paper trail suggests this was done under the radar with zero public debate about the rules change.

The committee’s annual report from last year shows that the change was made by eliminating a clause in the section “Access to Judicial Records,” which said, “Unless shielded by a protective order, the name, office address, office telephone number and office e-mail address, if any, relating to law enforcement officers, other public officials or employees acting in their official capacity, and expert witnesses, may be remotely accessible.”

It was unclear whether the change was debated — the rules committee has not posted minutes of its meetings since April 2016.

No one agrees with the Judiciary's change, which is probably why no one was consulted before the change was made. Everyone from city council members to state's attorney candidates to journalists find the change unwarranted, unhelpful, and a serious blow to trust-building efforts between law enforcement agencies and the communities they serve.

This unpopular move from the state judiciary suggests its members will show plenty of deference to law enforcement agencies and officers in the future. And it will continue to do so even when there's plenty of evidence out there showing officers are often untrustworthy, when not completely corrupt. It has a single reason for making this move -- officer safety -- but there's nothing in the judiciary's past that even suggests court records are being used to target police officers. Even local police departments release the names of officers involved in shootings and cases involving apparent excessive force. The Judiciary has decided to roll back transparency at the worst possible time, giving cops extra privileges they weren't even asking for and further damaging the public's trust in their public servants.

from the all-the-speech-you-want,-except-maybe-far-less-than-that,-actually dept

Law professor Danielle Citron -- best known at Techdirt for her attacks on Section 230 immunity -- has written a paper attacking Google, Facebook, etc., but not for the reasons you might think. Her paper [PDF] points out policy changes that have been made by several tech companies not in response to users or US government activity, but to get out ahead of increasing regulatory pressure in Europe. In the recent past, these platforms routinely defended the rights of everyone around the world to engage in free speech, even if that meant offending local governments. Now, with the internet headed towards enforced Balkanization backed by hefty fines, US companies are now routinely engaging in preemptive censorship of content perfectly legal in the US (and arguably legal elsewhere).

More recently, social media companies have revised their speech policies concerning extremist and hateful expression. Unlike previous changes, however, these revisions were not the result of market forces. They were not made to accommodate the wishes of advertisers and advocates. Instead, they were adopted to stave off threatened European regulation. After terrorist attacks in Paris and Brussels in late 2015, European regulators excoriated tech companies for failing to combat terrorist recruitment on their platforms. Their message was clear: online platforms would face onerous civil and criminal penalties unless their policies and processes resulted in the rapid removal of extremist speech.

As Citron points out, much of the content being taken down by Google and others isn't even illegal under more extreme speech laws passed in European nations. The laws written in response to tragedies have managed to turn social media platforms into tools of government oppression.

All of this might enjoy some justification if EU regulators focused their efforts on speech proscribed in their countries. But this has not been the case. Calls to remove hate speech have quickly ballooned to cover expression that does not violate existing European law, including “online radicalization” and “fake news.” EU officials have pressed a view of hate speech that can be extended to political dissent and newsworthy developments. At risk is censorship creep on a global scale.

Companies headquartered in the nation with the most free speech protections are turning their back on protecting free speech. Overblown fears of radicalization have resulted in the removal of content with inherent journalistic value (not to mention possible investigative value) and efforts to clamp down on something no one can seem to define ("fake news") is turning American companies against American values. While there is something to be said about taking steps to prevent the spread of terrorism, the attack on "fake news" presents a real threat to free speech, when all that's at stake there is the careers of politicians and their spin doctors.

The paper notes that it isn't just current laws forcing this change. It's the threat of even more direct regulation of internet service providers. To head off more draconian measures, platforms are trying to guess what lawmakers might find offensive, often aided by moderation-via-heckler's-veto: policing content reported by users. The results have already been disastrous, turning European regulation of speech into darkly-comic embarrassments.

What's being targeted by these haphazard efforts are topics of conversation where more speech, rather than less, would be extraordinarily useful. Terrorism is worldwide problem but a bunch of memory-holing isn't going to make it go away. Convincing those inclined to radicalization to step away from the precipice takes social interaction, as much of it public as possible. If nothing else, a social media paper trail can help track down those who've decided to do harm to others.

The same goes for "fake news." It needs fact-checking, debunking, and rebuttals. Simply making it vanish only further convinces those already swayed by fake news that the content of removed articles must be so full of truth, the government/Big Tech/George Soros paid to have it deleted from the public consciousness. Efforts like these breed conspiracy theorists, rather than deter them.

And it's not just about what's already happening, no matter how disturbing that is. It's what will happen if tech companies don't reverse course and stop acquiescing to every request to engage in further content moderation. Mission creep will set in, pushed along by legislators who'd like to see all sorts of speech they don't like removed from the internet.

Without clear guidelines and specific examples, vague terms are vulnerable to revision and expansion. Consider the Code’s definition of “illegal hate speech”: speech inciting violence or hatred against a group or a member of such a group based on race, religion, national, or ethnic origin. Inciting hatred against a group is an ambiguous concept. It could be interpreted to cover speech widely understood as hateful, such as describing members of a religious group as vermin responsible for crime and disease. But it could also be understood as covering speech that many would characterize as newsworthy. Given the term’s ambiguity, incitement of hatred could extend to criticism of Catholics for covering up priests’ sexual exploitation of children. It could be interpreted as applying to speech challenging Islamic fundamentalism for its homophobia or suppression of women. It could be extended to speech exposing hatred faced by racial minorities.

The lawmakers who've set this system in motion can't be trusted to rein it in before it causes real damage. As Citron notes, they haven't been honest and open about their intentions to this point. There's no reason to believe honesty and transparency are just over the horizon.

Despite the protestations of EU regulators, they are neither voluntary nor the product of meaningful public-private partnerships. Instead, they are the result of government coercion occurring outside the rule of law. What is different about the pressure from states now is that it has brought about changes that risk worldwide censorship creep. Because governments are using terms of service to achieve their ends, the resulting suppression of speech will be global.

The internet is the world's greatest communications tool. It's no wonder so many governments seek to control it. That part isn't surprising. What is both surprising and horrifying is how accommodating major platforms have become. While it's understandable they're uninterested in losing large numbers of users in other countries, they've made decisions to block or delete content that isn't illegal in many of the countries affected by these moderation efforts. What is blocked as "clear" violations of some country's law isn't so clear when given a second look. Even the most heinous terrorism-related posting has value outside of its recruitment drive purpose. The public deserves to know what's being done to humans around the world in the name of major religions.

Hate speech -- something nearly as poorly defined as "fake news" -- has its own value, although little of it is in the words said. It helps those targeted identify possibly dangerous bigots. It lets everyone else know how little value this person adds to a discussion. If it's deleted and its purveyors' accounts suspended, it only serves to harden their hatred and inflate their perception of themselves. Instead of being ignorant and useless, they'll feel they threaten the status quo with the powerful truths, hence the censorship and "persecution" by powerful corporations and governments.

More speech is always better than less speech. But the snowballs rolling downhill from Google, Facebook, and Twitter are gathering speed. And those who feel the only speech worth protecting is speech they like are winning, in some cases without even having to lift a legislative finger.

from the own-goals dept

We've written about Trump's long-term personal lawyer Michael Cohen a few times before. The first time was back in 2015 when he made a particularly stupid threat against reporters for reporting on Cohen's own stupid comments. In case you don't remember:

“I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know,” Cohen said. “So I’m warning you, tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting. You understand me?”

“You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up… for as long as you’re on this frickin’ planet… you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it,” he added.

That lawsuit never materialized.

The second time Cohen was written about here was when he did sue the press. Earlier this year he actually filed a lawsuit against Buzzfeed over Buzzfeed's decision to publish the infamous Christopher Steele dossier. As we noted, this lawsuit was particularly nonsensical, as he's suing Buzzfeed for statements in the dossier made by someone else.

You see, Cohen is also at the center of the whole Stormy Daniels mess. If you somehow have been under a giant rock for the past month or so, Cohen has admitted to paying $130,000 to Daniels (real name: Stephanie Clifford). As multiple places have reported, Daniels was apparently paid the money as part of an agreement to buy her silence over an affair she had with Donald Trump a decade or so ago. There are a huge list of important questions around all of this, including whether the whole thing violated campaign finance laws (which it very likely did).

A big part of the fight is over whether or not Daniels can really tell her story. We've noted that Trump lawyers are threatening to go to court to stop CBS from airing an interview, while Daniels' lawyers have argued that the agreement is not valid as Trump never signed it -- while also offering to pay back the $130,000 to break the agreement (which... uh... is not exactly how it works). And I won't even get into the hilariously meaningless "private" temporary restraining order that Cohen went to an arbitration firm to get, without even notifying Daniels.

Enter Buzzfeed: one of its lawyers on the Cohen case, Katherine Bolger from powerhouse law firm Davis, Wright, Tremaine, just sent a letter to Daniels' lawyer, Michael Avenatti, asking Daniels to preserve the documents at issue (i.e., the gag agreement), noting that this may be relevant to their own defense against Cohen. This suggests a plan to subpoena this information, which would likely free it from the gag order (and hand Buzzfeed one hell of a story). The preservation demand covers a lot of potentially interesting info:

This includes without limitation all relevant ESI (including but not limited to e-mail), banking records, Word documents, spreadsheets, PDFs, reports, articles, books, memos, letters, calendar entries, handwritten notes, text messages, chats, phone messages, phone logs, audio recordings, or any other type of document or communication, final or draft, in either written or electronic format.

"ESI" in the above stands for "electronically stored information." The letter also asks for details of "any and all payments made by Mr. Cohen or Essential Consultants, LLC to Ms. Clifford, including but not limited to documents that would show the means by which the funds were transferred and/or the payments were made."

So why does Buzzfeed argue this is relevant to their own case? Well, because Cohen's lawsuit against Buzzfeed argues that Buzzfeed defamed him by implying that he had some role in possible Russian connections with the Trump campaign -- and Buzzfeed argues that cash payments Cohen was making to someone to silence them around the campaign is directly relevant to the questions at play in the lawsuit:

In his Complaint... Mr. Cohen asserts a claim for defamation based on an article published by Defendant BuzzFeed in January 2017 entitled "These Reports Allege Trump Has Deep Ties to Russia".... The Article contained an embedded document file containing a 35-page colleciton of memoranda that primarily discuss Russian efforts to influence the 2016 U.S. Presidential election, including alleged ties between Russia and President Trump's campaign... The memoranda in the Dossier contain certain references to Mr. Cohen that Mr. Cohen alleges falsely imply that he played a role in facilitating Russian interference in the election...

Mr. Cohen's role in President Trump's 2016 campaign, including but not limited to any payments he made or facilitated to third parties during or in connection with the campaign, is therefore directly relevant to the Action.

Who knows if this move will actually work, but if it does, that would be quite an incredible "own goal" by Cohen in which his own silly lawsuit unravels the other legal mess that he's been trying to keep under wraps. This is the kind of plot twist most novelists can only dream about (or reject for sounding to implausible to be real)...

from the it's-fake dept

Spoilers suck, sure, but this is the internet and some things cannot be avoided. Still, for those that produce content, there are better and worse ways to handle the issue of spoilers. Some large entertainment groups try to sue over spoilers, but it rarely works. Others settle for mere DMCA takedowns. Most entertainment groups, meanwhile, don't do a damn thing about spoilers, because that's the correct course of action.

Still, even with that wide spectrum of past responses, sending legal threats to journalists over spoilers, such as the Lucha Underground wrestling show has done, is a new one for me. The legal threats rest on the NDAs the audience has to sign before attending a show.

Since the series started filming in late 2014, it has always required audience members to sign non-disclosure agreements. But with hundreds of fans there, spoilers always get out.

This week, Lucha Libre FMV, a joint venture of Factory Made Ventures and Mexico’s AAA promotion, went a bit further than it had before, sending legal threats to wrestling reporters who published spoilers from the first tapings of Lucha Underground season four. Letters from attorney Paul D. Supnik were emailed on Wednesday to former TMZ producer Ryan Satin, now of Pro Wrestling Sheet, and to Steve Bryant of SoCal Uncensored. Satin published his on Thursday morning and Deadspin obtained Bryant’s around the same time. Reading the effectively identical letters, it seems as if the fact that both Satin and Bryant live in the Los Angeles area, where Lucha Underground is shot, may have played some role in them being targeted. It may just be that all the spoilers from the February tapings are attributed to their reports, but the letters do pointedly ask if their recipients attended the shows. Both Satin and Bryant maintain that they did not, and since FMV would have the NDAs, the implication is that they think both may have attended using aliases.

Interestingly, the letters assert that the reporting done by these journalists violates the NDA even if the journalist hasn't signed an NDA. This novel legal theory is predicated on Lucha Underground asserting that the spoilers, or event results, are trade secrets. The letter goes on to say that the journalists are or should have been aware of the status of event results as trade secrets, which opens them up to liability.

Spoiler alert: none of that is true.

The first amendment is quite clear on the matter of a journalist's right to report factual information, even factual information that an individual or company would rather keep hidden. If the Pentagon Papers can be published, surely so can the results of an underground wrestling event. And, even if that fact were more in question than it is, journalists, who rely enough on these protections to know their ins and outs, are the exact wrong people to try to threaten into silence. As one would expect, the end result of these threats is that both these journalists and their work has gotten far more attention that it would have otherwise.

from the good-deals-on-cool-stuff dept

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from the say-what-now? dept

Update: Late this evening ProPublica retracted and corrected a story from last year, saying that Haspel was in charge of the Thai CIA prison site while Zubaydah was tortured. That does suggest that some of the accusations against Haspel actually should be blamed on her predecessor. As the correction notes, she did not arrive to run the base until October of 2002, after Zubaydah's torture had concluded. However the report quotes the NY Times saying that she did still oversee the torture of Abd al-Rahim al-Nashiri and that she was still involved in the destruction of the video tapes of the torture sessions -- both of which should be disqualifying from the job.

In addition, these kinds of mistakes wouldn't be made if the government actually came clean over what it did and who did it. Revealing who ran that prison site and what they did would not harm national security. It would provide an accurate accounting of what really went down. I'm sure that some Haspel supporters will argue that this correction mean that all of the concerns about Haspel are "fake news" even though that's clearly not true at all. Instead, this seems like even more evidence for why the details of her involvement needs to be declassified prior to facing confirmation hearings in the Senate. Our original article is below.

As you've probably heard, with the latest in the neverending rotating cast of characters that makes up the current Trump administration, a set of dominoes has been knocked over with the tweeted firing of Secretary of State Rex Tillerson and the nomination of CIA boss (and former Congressional Rep/longtime defender of surveillance and torture) Mike Pompeo to replace him. While Pompeo was a vocal supporter of the CIA's torture program, he didn't actually have any hand in running it. Instead, that distinction goes to Gina Haspel, whom Trump has nominated to take Pompeo's place. Haspel not only oversaw parts of the CIA's torture program, she was also directly involved with the destruction of the video tapes showing the torture procedures. The still classified 6,700 page Senate report on the program apparently contains a lot of details about the program that Haspel ran while running a CIA blacksite in Thailand. Annabelle Timsit has helpfully pulled together some details of what is currently known from the heavily redacted declassified executive summary (you may recall we spent years writing about the fight to just release that summary). What's stunning is that the program so disgusted CIA employees that some were at the "point of tears and choking up" and multiple people on site asked to be moved to other locations if the CIA was going to continue these torture techniques. From the report (see the update above, noting that these quotes were from a couple months before Haspel took over):

CIA personnel at DETENTION SITE GREEN reported being disturbed by the use of the enhanced interrogation techniques against Abu Zubaydah. CIA records include the following reactions and comments by CIA personnel:

August 5, 2002: “want to caution [medical officer] that this is almost certainly not a place he’s ever been before in his medical career. … It is visually and psychologically very uncomfortable.”

August 8, 2002: “Today’s first session … had a profound effect on all staff members present … it seems the collective opinion that we should not go much further … everyone seems strong for now but if the group has to continue … we cannot guarantee how much longer.”

August 8, 2002: “Several on the team profoundly affected ... some to the point of tears and choking up.”

August 9, 2002: “two, perhaps three [personnel] likely to elect transfer” away from the detention site if the decision is made to continue with the CIA’s enhanced interrogation techniques.

August 11, 2002: Viewing the pressures on Abu Zubaydah on video “has produced strong feelings of futility (and legality) of escalating or even maintaining the pressure.” Per viewing the tapes, “prepare for something not seen previously.”

In other words, for all the people out there who insist this was not torture, even the CIA people working on the program clearly felt that it went way beyond the line.

Perhaps even more incredible is that Ali Soufan, the former FBI agent who interrogated Abu Zubaydah before the CIA's team of torturers took over, has written a damning article about that program:

I know firsthand how brutal these techniques were—and how counterproductive. In 2002, I interrogated an al-Qaeda associate named Abu Zubaydah. Using tried-and-true nonviolent interrogation methods, we extracted a great deal of valuable intelligence from Zubaydah—including the identities of the 9/11 mastermind Khalid Sheikh Mohammed and the would-be “dirty bomber” Jose Padilla, both of whom would be arrested shortly after. Yet some officials later tried to manipulate the record to make it seem as if this intelligence was gained through torture, even going so far as to misstate the date of Padilla’s arrest, which in fact occurred before Zubaydah or any other al-Qaeda suspect was waterboarded.

Unsurprisingly, the CIA’s own inspector general concluded that the torture program failed to produce any significant actionable intelligence; and I testified to the same effect under oath in the Senate. What’s worse, the program has gotten in the way of justice: To this day, we cannot prosecute terrorists such as the masterminds behind the USS Cole and 9/11 attacks, in large part because the evidence against them is tainted by torture.

Soufan also calls out Haspel's role in destroying the evidence of torture.

In 2005, Jose Rodriguez, the CIA’s counterterrorism chief, ordered the destruction of some 92 videotapes of the harsh methods being used on al-Qaeda suspects that the black site Haspel had once run. Rodriguez issued this order in defiance not only of the CIA’s own general counsel at the time, John Rizzo, but also of a federal court order. And to draft the cable ordering the tapes to be thrown into an “industrial-strength shredder,” Rodriguez turned to his then-chief of staff—Haspel.

Rodriguez was later criticized for his actions by the CIA’s inspector general; but true accountability—for the torture program itself, as well as for the destruction of evidence—has proved elusive. This gives rise to another set of questions that will need to be pressed in the Senate. Was Haspel pleased with the order she drafted, or troubled by it? Does she stand by Rodriguez’s public justification, that he was protecting the lives of his operatives, or his private one, documented in declassified emails, that the tapes would make him and his group “look terrible”? Above all, if the torture program was so valuable and necessary, why destroy the tapes at all?

Soufan also reiterates (as mentioned above) that "many professionals within the agency courageously chose to stand up against the enhanced techniques, walking away from black sites in protest and registering a large number of complaints." Haspel was a willing participant and leader in the effort. Soufan also notes that the CIA used the intelligence he obtained, not via torture, and lied to Congress about it, pretending that it came about via its failed and morally repulsive torture program.

Plenty of information about Haspel's involvement in both the torture program and the cover-up is still classified -- leading at least some Senators to call for declassifying that information. Rand Paul has been the most vocal opponent to the appointment of Haspel:

Paul said he is opposing Haspel due to her involvement in the enhanced interrogation program during the George W. Bush administration. He said she showed "joyful glee at someone who is being tortured."

"I find it just amazing that anyone would consider having this woman at the head of the CIA," Paul said.

This is a principled stand. And yet, he is being attacked for it. The most incredible attack came from Rep. Liz Chaney (whose father helped set up and defend the torture program), who directly claimed that Rand Paul questioning whether or not we want a torturer to lead the CIA was "defending and sympathizing with terrorists."

Let the insanity of that statement sink in for a moment. Here you have a member of Congress claiming that a Senator is "defending and sympathizing with terrorists" for merely suggesting that we shouldn't support having someone who ran the CIA torture program as the next CIA director. Even if you believe -- against all evidence, and against basic human decency -- that torture is a good thing to use against anyone, how is it possibly "sympathizing with terrorists" to suggest that such a person is not qualified to be CIA director? Does Cheney also believe that Soufan, the former FBI agent who actually got intelligence out of terrorists without torturing them is also "defending and sympathizing with terrorists" in stating:

And yet today, the candidate for the top job at the agency is someone who willingly participated in both the program and the attempted cover-up. We need to consider what kind of message this sends to people in the intelligence community and the wider government. Do things right, stand up for American values, and you will be ignored. Flout them, and you will be rewarded.

What kind of sick mind is so supportive of torture that she would argue that merely questioning whether this person should head the CIA is somehow siding with the terrorists? Politicians make really stupid statements all the time, but Liz Cheney's statement is positively jaw dropping in its blind obedience to what many have argued are war crimes by the US government. This kind of logic is the kind of logic that leads to very dangerous outcomes. It's beyond Machiavellian. It is not even that the ends justify the means (which would be bad enough), because the ends did not justify the means with the CIA's torture program. It's that merely questioning the means somehow makes you sympathetic to the cause of terrorists. That's a recipe for disaster. It allows no questioning. It allows no dissent. It allows no conscience. It is pure authoritarian evil.

from the reap-what-you-sow dept

Earlier this year, California introduced new net neutrality legislation as part of similar efforts across more than half the states in the nation. At the time, we noted how the EFF wasn't a particular fan of California's proposal, arguing that the wording of the effort left the law open to challenges by the FCC, which has (at AT&T and Comcast behest) promised to block states that actually try to protect consumers in the wake of its unpopular net neutrality repeal. But a new California proposal has no such Achilles heel, goes notably further than the first effort, and now has the EFF's full support.

California state senator Scott Wiener this week introduced SB 822, a much tougher, more comprehensive proposal that would prohibit not only the blocking and throttling of websites and services by ISPs, but would ban "paid prioritization" deals that would allow deep-pocketed content companies (like, say, ESPN) from buying an unfair advantage against smaller competitors and startups. The bill also takes aim at the kind of interconnection shenanigans and double dipping that resulted in Netflix performance issues back in 2014, while leaving the door open to reasonable network management practices.

In some ways the proposal goes a bit further than the FCC's 2015 net neutrality rules, in that it more concretely addresses the problem of "zero rating" ( when ISPs let a partner's content or their own bypass usage caps while still penalizing others). Zero rating in general is allowed, but only if entire classes of content are whitelisted. Individual efforts to whitelist only specific partners (as we saw with T-Moble's controversial "Binge On" efforts), would be forbidden, as would pay to play approaches where content companies are allowed to buy a zero rating advantage over a competitor:

"Wiener’s bill digs into more arcane matters that the Obama-era FCC’s now-abolished 2015 policy included. It tackles the “zero-rating” programs, such as T-Mobile’s Binge On, which exempt some sites, apps, and services from monthly data caps. Obama’s FCC allowed Binge On, since T-Mobile continued welcoming new video services. California’s law seems to require blanket access for all similar apps without a wait for the ISP to add them. “It can be allowed if it is about a certain class [of content], like you could have when you’re doing games,” says Wiener about zero-rating. “If they say we’re going to apply it to a category, not any one product, and all comers, then it’s not automatically illegal."

The bill is also more resilient to any efforts by the Trump and Ajit Pai FCC to hinder state efforts to protect consumers. Whereas many states are just regurgitating the FCC's 2015 rules in their own proposals, that alone isn't enough to protect them from potential FCC preemption, argues Barbara van Schewick, Professor of Law at Stanford Law School, and the Director of Stanford Law School’s Center for Internet and Society. She also argues that the FCC shot its state preemption efforts in the foot by rolling back the classification of ISPs as common carriers under Title II of the Telecommunications Act:

"The bill is on firm legal ground.

While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid. According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.

But by re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections. The FCC’s Order is explicit on this point. Since the FCC’s 2017 Order removed the agency’s authority to adopt net neutrality protections, it doesn’t have authority to prevent the states from doing so, either."

More simply, the FCC shot itself in the foot, and when it neutered its own authority over ISPs at Comcast, AT&T and Verizon's behest, it managed to also neuter its authority to pre-empt states from filling the void. Of course this could all be moot if the FCC loses its battle in court, but it's amusing all the same, and it's another example of how Ajit Pai and friends didn't really think this whole thing through.

While ISPs have whined incessantly about the headaches of having to adhere to multiple discordant net neutrality rules, that's not quite as big of a problem as they claim (especially since they already adhere to numerous rules governing phone, broadband and TV, which can vary town to town). Most of these new state laws follow the same effective template, and Wiener's office says it will work with numerous states to help them mirror California's efforts. All told, if consistency and stability were really the goal of AT&T, Verizon and Comcast lobbyists, they should have left the popular federal protections alone.

from the skating-by-on-DOJ-indifference dept

It almost seems like half a lifetime ago, but only a half-decade has passed since James Clapper lied to Ron Wyden about the NSA's domestic collections. Wyden pointedly asked Clapper during an intelligence committee hearing whether or not the NSA was collecting "any type of data at all" on American citizens. Clapper gave two answers, both untrue: "No, sir" and "Not wittingly."

A couple of months later, the first Snowden leak -- detailing massive amounts of call data being captured in the Section 215 dragnet -- undid Clapper's careful, under-oath lies. Since then, nothing has happened. The DOJ refused to investigate Clapper for lying to his oversight. Clapper exited office a few years later, becoming a go-to national security expert for a variety of news programs. He has since offered a variety of excuses for lying, but none of them are particularly good.

As of March 12, the clock has run on perjury charges. James Clapper has violated federal law and gotten away with it.

Clapper, director of national intelligence from 2010 to 2017, admitted giving “clearly erroneous” testimony about mass surveillance in March 2013, and offered differing explanations for why.

Two criminal statutes that cover lying to Congress have five-year statutes of limitations, establishing a Monday deadline to charge Clapper, who in retirement has emerged as a leading critic of President Trump.

Some members of Congress had called for charges to be brought against Clapper, but they seemed based more on Republicans' newfound distrust for the "Deep State" than an honest desire to see a federal lawbreaker brought to justice. One of the reps, however, has held steady in his calls for Clapper's prosecution for the entirety of the last half-decade: James Sensenbrenner.

"Political consideration should not affect the Department of Justice from pursuing this matter,” Rep. James Sensenbrenner, R-Wis., said ahead of the deadline. “Complete and truthful testimony is imperative for Congress to conduct effective oversight. It is clear from the evidence and Director Clapper’s own admission that he lied.”

Both the DOJ and James Clapper have refused to comment on the issue. Presumably, both entities are happy the deadline came and went without further development. The "no comment" responses allow both to avoid discussion of the DOJ double standards. But this non-prosecution shouldn't pass without notice.

Jesselyn Radack, a defense attorney who represents Snowden and fellow NSA whistleblower Thomas Drake, however, takes a dim view of Clapper being let off the hook.

“It shows that government officials in positions of power can lie with impunity to Congress and the American people about outrageous abuses, but when ordinary citizens like Reality Winner reveal the truth about the same abuses, they face espionage charges and prison," Radack said, referring to the NSA contractor charged last year for sending the Intercept a report on Russian attempts to hack election systems.

Most people who lie to Congress won't have the luxury of exiting their current positions gracefully before popping in cable newsrooms all over the nation. But Clapper is one of the special ones -- the ones who won't be held accountable because the government takes care of its own, especially when dubious, Congress-approved surveillance programs are in the mix.

from the bully-for-you dept

I've had the opportunity to write about many trademark disputes in these pages, but it's been rare for any of them to hit very close to home. That changed this week when we learned that Ravinia Festival in the northern Chicago suburbs, at which I have seen many a concert, has decided to bully a startup brewery over its use of the word "Ravinia" in its name.

A demand for royalties from the Ravinia Festival halted preparations to open a brewpub in Highland Park's Ravinia district in the coming months. The outdoor music festival sent a letter to the Ravinia Brewing Company two weeks ago demanding licensing payments and royalties for the brewery's use of the neighborhood's name, according to the Ravinia Neighbors Association, a local community organization.

These demands simply make no sense. Ravinia Festival is a concert venue. It has trademark rights on the word Ravinia, a historical name for the area in which both businesses reside, for restaurants, catering services, and banquet services. It is not and never has been a brewer of beer, nor does it have a valid trademark for that market. There is no potential for customer confusion, either, as nobody is going to walk into a brewery expecting to see a classical music concert. In other words, this is pure bullying.

And, all the more annoying, Ravinia Festival can't even be bothered to be consistent in its bullying.

Between 1985 and 2015, the proposed location of the Ravinia Brewing Company's restaurant at 592 Roger Williams Avenue housed Ravinia BBQ. There is no indication Ravinia Festival ever sought licensing payments from that restaurant during its three decades of operation. In order for the music festival to get its trademark for "restaurant services," it filed a sworn statement alleging there was no other restaurant using the name, despite the existence of the longtime barbecue joint.

To be clear, Ravinia is bullying a brewery over the name of a geographic area using the term in a market in which Ravinia Festival does not operate. Meanwhile, Ravinia Festival likely did infringe on the trademark rights of the barbeque joint located at the exact same address as this new brewery back when it was in operation and lied on its trademark application to get the mark approved. Ravinia Festival also did not object when Ravinia Brewing Company applied for its own trademark back in 2015.

Sadly, none of that may matter, because Ravinia Festival has lots of money and the brewery does not.

The brewpub's owners, Highland Park residents Kris Walker, David Place and Brian Taylor, say they will be forced to cancel plans for the business if the music festival doesn't relent.

Their proposed pub planned to offer a full menu, but had no intention of hosting musical performances.

It looks like I may have to cross Ravinia Festival off of my list of concert venues in the future, unless there is enough public backlash to correct its behavior.

from the closing-in-on-a-half-million-in-military-surplus-per-officer dept

The Defense Department's 1033 program has allowed law enforcement to muddy the water on the distinction between police force and military force. Given the right reasoning (most commonly cited: Wars on Terror/Drugs), police departments are allowed to pick up surplus military gear, often for free (utilizing DHS grants) and start pretending they're an occupying force, rather than public servants.

This came to a head following protests in Ferguson, Missouri, where viewers around the world were treated to the sight of local law enforcement rolling up on residents in mine-resistant vehicles while clad in gear that made officers look far more like soldiers than cops. This prompted a rollback of the 1033 program by Obama, limiting the sort of gear police departments could obtain to more innocuous surplus, like computers and furniture.

That has since changed. President Trump, showing his support for all things law enforcement, rolled back Obama's rollback, giving police departments access to assault vehicles and military weapons. With this comes a rollback in trust, as it has been shown giving military gear to cops makes them believe they're soldiers in a war zone, rather than public servants in a community.

When asked if the Dewey PD could account for all of the items by providing the physical location of items in their possession and paper trails for items sold, Sgt. Cliff Dempsey said, “We’re not going to comment on that matter at this time.”

On the agenda for a Nov. 11 Dewey Beach commissioners’ meeting is the discussion of three options for to the 1033 program:

1. require the DBPD to provide complete accounting for property received through any federal or surplus property program,

2. accept a recommendation from the town’s audit committee to utilize the town’s auditors, or

3. hire an independent consultant to conduct a more comprehensive review.

[A]mong hundreds of line items turned over between March 2013 and December 2017, the police acquired a total of 12 ATVs, 51 jackets or parkas and 13 space heaters, and 19 trucks of all kinds.

Dewey’s department has just eight full-time and three part-time officers, the town population is less than 400 people and the town itself is a just mile long and two blocks wide.

This includes a mine-resistant armored car and an armored Humvee -- all to oversee 400 people residing in a one-mile, two-block stretch. The justifications for even the more innocuous acquisitions are questionable, if not downright laughable. As the Beacon points out, the Dewey PD requested boats for water rescues, something already handled by a separate beach patrol and the Coast Guard. ATVs were supposedly handed to the department for something termed "homeland security patrols."

Many items were obtained to support the PD's private shooting range, including multiple tractors to shore up backstop berms and parkas to wear on colder days. The location of the range is kept secret by the department and the town was not (knowingly) involved in financing its construction. This secret range is mentioned more than 50 times in the PD's 1033 requests.

Despite this news surfacing last November, town commissioners have yet to receive any answers from the department it apparently can't oversee.

At their Feb. 10 meeting, Commissioner Gary Persinger lamented, “We’re three months down the road and we don’t have information in response to that request.”

As of March 1, [Mayor T.J.] Redefer said had not yet been privy to the departmental justifications of need.

On top of this, the department has apparently been selling some of the surplus it has received. Certain sales are permitted by federal law, but there has been no reporting by the police department detailing the amount of money received or what is being done with the funds. The extensive list of items obtained makes it appear the Dewey PD has stocked and furnished its office at federal taxpayers' expense while avoiding any sort of local accountability.

All of this is legal under state and federal law. In Delaware, law enforcement agencies aren't required to notify local governments about 1033 acquisitions and sales. And so they don't, apparently, even though it would make more sense in the long run to be upfront about it. When details about acquired military equipment remain solely in the hands of law enforcement recipients, the general assumption is something is being abused. After all, if you've done nothing wrong, you've got nothing to hide, right? But as is so often the case, details are uncovered years after the fact and often by unrelated third parties who apparently care more about police oversight than the local governments charged with overseeing their law enforcement agencies.